Citation Nr: 1708741
Decision Date: 03/22/17 Archive Date: 04/03/17
DOCKET NO. 14-34 062 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for metals disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J.N. Moats, Counsel
INTRODUCTION
The appellant served on active duty from April 9, 1996 to May 10, 1996.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2012 by the Department of Veterans Affairs Regional Office in St. Petersburg, Florida. Jurisdiction over the case currently resides with the RO in Wichita, Kansas.
The appellant testified at a Board hearing before the undersigned Veterans Law Judge in June 2015 at the Kansas RO. A transcript has been associated with the record.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDING OF FACT
For the entire appeal period, the evidence fails to show that the appellant has a current diagnosis of a metals disorder for VA purposes.
CONCLUSION OF LAW
The criteria for service connection for a metals disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The appellant was sent a letter in May 2012 that fully addressed all notice elements and was sent prior to the initial September 2012 rating decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the appellant of what type of information and evidence was needed to establish a disability rating and effective date in accordance with Dingess/Hartman, supra. Accordingly, no further development is required with respect to the duty to notify.
Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The electronic record contains the appellant's service treatment and personnel records. Although the appellant has argued that her service records are incomplete, there is no evidence in the record that all of the appellant's records have not been obtained. Indeed, service and personnel treatment records were obtained from April to May 1996, the entirety of the appellant's service. Although the appellant indicated that she went to the Gainesville, Florida VA Medical Center after discharge, she also indicated that she did not actually receive treatment there. The appellant has not identified any post-service clinical records. Moreover, the appellant's statements in support of the claim, to include her Board hearing testimony, are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also inspected the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim.
The appellant has not been afforded an examination in connection with her claim; however, the Board finds that such is not necessary in the instant case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a appellant's claim for benefits, there are four factors for consideration.
These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
As discussed further below, the appellant's service treatment and personnel records are silent as to complaints, findings, or diagnoses pertaining to a metal disorder. Moreover, there is no post-service competent medical evidence of any such disorder. While the appellant has described symptoms, she is not competent to diagnose any such disorder. In sum, there is no competent evidence of a metals disorder now or in service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim.
Moreover, in June 2015, the appellant was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, during the June 2015 hearing, the undersigned noted the issue on appeal and information was obtained regarding the appellant's contentions. Further, the undersigned requested further information concerning pertinent symptoms since service. In addition, the hearing focused on the elements necessary to substantiate the appellant's claim, to include in-service incurrence, current disability, and a nexus between the two. The appellant has not asserted that there was any prejudice with regard to the conduct of the hearing. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.
For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
Analysis
The appellant is seeking service connection for a metals disorder. In her statements of record and at the Board hearing, she has reported that during boot camp, she became violently ill, vomiting profusely, and was taken to a medical facility where blood work was done. She indicated that she was told she had a metals disorder.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a metals disorder is not one of the enumerated diseases under 38 C.F.R. § 3.309(a), service connection may not be established based on the continuity of symptoms alone.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Service treatment and personnel records are silent with respect to any complaints, findings or diagnoses of a metals disorder. They are also silent with respect to any illness as asserted by the appellant. Rather, service records show that the appellant was recommended for discharge within a month after her entrance into active service due to a diagnosis of a personality disorder. In this regard, the appellant underwent a mental health examination in April 1996. She was referred for evaluation due to numerous problems primarily related to disrespect and challenge of authority. The appellant was uncooperative with the examination. However, no history of any illnesses was given. She was diagnosed with a personality disorder and recommended to be discharged. She also indicated that she did not want a separation medical examination. There are no post-service treatment records.
Therefore, based on the evidence of record, the Board finds that a preponderance of the evidence is against a finding that the appellant currently has a metals disorder for VA compensation purposes. Although the appellant reported being violently ill while in boot camp, the contemporaneous medical evidence fails to document any such treatment as has been suggested, or complaints of such symptoms. After undergoing a mental health evaluation, again, where there is no mention of any history of such illness, the appellant was only diagnosed with a personality disorder with no other clinical findings. Importantly, the appellant declined a service examination further indicating that she was not experiencing any chronic symptoms. Significantly, there are also no post service treatment records documenting such diagnosis. In sum, there is simply no competent medical evidence of a metals disorder.
The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously considered and explicitly rejected the view that medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Specifically in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).
When applying the case law discussed above, here, the appellant is competent to describe symptoms and to report a continuity of symptoms since service. However, while she can describe symptoms, she is not competent to diagnose a metals disorder. The Board finds that medical experience is required to diagnose a metals disorder and that the appellant has not shown that she has such experience. Thus, her contentions that she currently has a metals disorder are outweighed by the lack of clinical diagnosis of any such disorder.
The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Court has held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
In Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), that Court found that the Board erred when it did not consider whether the appellant's adjustment disorder, diagnosed prior to the claim period, was extant at the time he filed his claim but had resolved by the time of the later examination. Therefore, the Board will also look to the evidence prior to the claim period. See McClain, 21 Vet. App. at 321 (noting that the "current disability" required for service connection includes a disability at the time of filing or during the pendency of a claim); but see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "simply because [the Veteran] had a disease or injury while on active service" was insufficient to obtain benefits "[i]n the absence of proof of a present disability"). In the instant case, based on the evidence of record, the appellant has not suffered from a metals disorder at any point during the course of the appeal.
In conclusion, given the lack of a current diagnosis, the preponderance of the evidence is against service connection for a metals disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b).
ORDER
Service connection for metals disorder is denied.
____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs